Environmental Law and Policy

Professor Elaine Hughes

UNIT 3

THE COMMON LAW

Common law (tort & property)◦ Environmental bills of rights

Regulatory legislation◦ Administrative law review

Criminal law◦ sentencing

Substantive Law – Main Approaches

Traditional causes of action

Pros & cons

Modern context: statutory torts, class actions, environmental rights and SLAPPs

The Common Law Approach

Historically, common law causes of action in tort and property were the ONLY ways to control undesirable land uses.

Although established and available, they are difficult to use to get a remedy for injury from pollution, and there is no right to be free from environmental harm per se

Film: “Herbicide Trials”

Case Study: Palmer v. Nova Scotia Forest Industries (1983) 2 D.L.R. (4th) 397 (N.S.T.D.)

What are the pros and cons of using civil litigation to control environmental harm?

Con: choice of an appropriate cause of action can be problematic

◦ You may need personal injury or private property damage

◦ There may be specialized standing rules

Options: private nuisance, public nuisance, negligence, Rylands v. Fletcher (civil strict liability), trespass, riparian rights

Def/an unreasonable interference with the use or enjoyment of land owned or occupied by the plaintiff

No intention or negligence by defendant is needed, nor does the defendant need to be a property owner.

Private Nuisance

Clearly cannot be used to protect unoccupied land (e.g.. Wilderness)

With direct physical or personal injury, liability flows on proof of damage

For lesser interferences with use and enjoyment, the parties’ interests are balanced and the plaintiff will only succeed if the defendants’ actions are unreasonable

Private Nuisance (con’t)

Def/a nuisance committed against the public at large i.e., interference with the health, safety, comfort or convenience of the community

Issues: specialized standing, class actions, eligible damages

Public Nuisance

Plaintiff must meet specialized standing rules:

1. The Crown (AG of Canada or any province)

2. A relator (private person acting with the discretionary permission of the Crown)

3. A private person only if he or she has suffered “special” damage different from the community

Public Nuisance Standing

How can we distinguish between injury to “the public” and a private nuisance which affects a number of persons?

Class action statutes may provide some solutions to this dilemma

Public Nuisance – Who is the Public?

Personal injury and property damage are always special damage

For other interferences, the key question is whether harm must be different in degree from that done to the general public, or whether it must be different in kind?

Canadian trend is toward the “difference in kind” test

Whether pure economic losses count is particularly problematic.

Public Nuisance – “Special Damage”

Def/failure to use reasonable care to prevent foreseeable harm

Many elements: duty of care, breach (fault), actual damage, foresee ability, cause in fact, proximate cause

Useful in the absence of property interests and where the plaintiff is at partial fault

Negligence

Def/defendant in occupation of land on which is kept a dangerous (non-natural) thing must prevent its escape or be liable for all direct consequences

No negligence; it is not a nuisance because plaintiff need not be a landowner

Rylands v. Fletcher(civil strict liability)

Def/a direct, intentional invasion of the plaintiff’s land, even if no actual damage occurs

Trespass to the person can also occur

Trespass

Def/riparian owners are entitled to the natural flow of water without sensible alternation of its quantity or quality

Domestic and/or reasonable use of water by upper riparians must not diminish the quality or quantity for use by lower riparians

Greatly affected by statutory licencing regimes in Canada

Riparian Rights

Other pros and cons in addition to standing rules and specialized elements of each tort (e.g.. Land ownership)?

Con: Statutory authority may provide a defence

◦ If a company has a permit for its activities, it must choose to do so in a non-tortious way if possible. However, if a nuisance is an inevitable consequence of a statutory duty or authorization, this provides a defence

Cons: the need to prove causation can be problematic due to scientific uncertainty and/or multiple defendants

Possible solutions:1. Reverse onus e.g.. EBRs2. Partial liability e.g.. US doctrines like probalistic

causation, market share liability

Cons:◦ Actions are ad hoc not part of an overall land use

plan

◦ Remedies (typically damages) are after-the-fact i.e. Not preventive

◦ Only present harm compensable

Pros:

◦ Can win

◦ Can recover private losses

◦ Can compel government to act

◦ Is under control of the injured person

Pros:

◦ Polluter is made to bear the responsibility

◦ If injunction awarded, can stop the damage

◦ Publicity about issues and an educational function can be served

Various interesting issues have come up in modern litigation, some designed to provide solutions to some of the shortcomings of traditional tort law, and others that broaden its scope.

Modern statutes that set out the regulations controlling pollutant discharges usually establish statutory torts.

Breach of Act or Regulations = actionable civil wrong

Unlike EBRs they are limited to personal injury or property damage

Statutory Torts

Most provinces now have statutes to permit class actions where groups are injured by civil wrongs, including environmental cases.

Alleviate standing and costs requirement

Need to have class “certified” as a 1st step

Class Actions

Cases include:

Hollick (SCC 2002)Hoffman (SCC 2007)

Actions against government for failures in regulatory control of polluters are subject to special rules.

There is Crown immunity for problematic policy decisions, while negligent operational decisions can result in liability.

Public Authority Liability

Canfor (SCC 2004) – Crown has parens patriae jurisdiction to sue for damage to public resources via public nuisance or negligence actions

U.S. public trust doctrine discussed favourably – Court sees potential for common law to develop on its own

Public Environmental Rights/Public Trust

Strategic Lawsuits Against Public Participation

Misuse of frivolous litigation against concerned NGOs to drain money and resources

U.S. idea of anti-SLAPP statutes to provide cost-effective and expedited procedure to see such claims dismissed

SLAPPs

Environmental Bills of Rights

Idea was to make statutory changes to the common law to alleviate issues with standing, costs, remedies

EBRs

Increased ability to go to Court (judicial accountability model)

Individual right to take action against polluters, or government

Environmental damage per se is actionable

Remedies focus on environmental restoration

Yukon Environment Act

Some reverse onus provisions and discretionary intervenor funding

Also creates a public trust action where government fails to take sufficient steps to protect resources

Petition and investigation rights

Yukon Environment Act (con’t)

An alternative idea for “rights” developed based on the idea that better access to decision-making procedures by concerned persons might prevent problems and the later need for litigation.

Increased access to information and ability to provide input in advance of various decisions e.g. to issue licences, to amend regulations

Focus is on taking action against government to compel investigations and reviews (political accountability)

Ontario EBR

If procedural steps fail, there is a “last report” access to the Courts to protect public resources

Served as a model for similar rights under CEPA ‘99

Ontario EBR (con’t)

Make it to committee in 2010 under the minority government before dying in the 2011 election call

Access to information, participation in lawmaking, review of federal instruments, investigations, judicial review of government decisions, civil suits against polluters

Proposed Environmental Bill of Rights (federal Bill C-469)

Includes a public trust duty on government to protect resources

Addresses standing, costs, reverse onus, remedies

Combines elements of both approaches

Bill C-469 (con’t)